Herbin v. The City of New York
- Laura Swain
- 1:22-cv-05890
- U.S. District Court · Southern District of New York
- 2
In Herbin v. The City of New York, Judge Swain vacated the dismissal, reopened the case, and denied fee-waiver status for an appeal.
Reginald Herbin and the status of his action against The City of New York and the other named defendants; the order reopens the case but does not decide the underlying claims.
What happened
In Herbin v. The City of New York, Reginald Herbin filed the case without a lawyer. The court had ordered him to either pay the filing fees or submit an application to proceed without paying them. He did neither by the deadline, so the court dismissed the complaint without prejudice.
The court later received Herbin’s application one day after the dismissal. Because he was representing himself, the court accepted the late application. It directed the clerk to vacate the earlier dismissal order and judgment and reopen the case for further proceedings.
The order also states that any appeal would not be taken in good faith and denies fee-waiver status for an appeal. Judge Swain issued the order on January 20, 2023.
The detailed version
- Herbin v. The City of New York · No. 1:22-cv-05890
- Laura Swain
- Jan. 20, 2023
Background
Reginald Herbin brought this action without a lawyer. On August 22, 2022, the court ordered him within 30 days either to submit an application to proceed without paying the filing fee or to pay the $402 required to file a civil action. The order warned that failing to do so would result in dismissal.
Herbin did not pay the fee or submit the application by the deadline. On December 7, 2022, the court therefore dismissed the complaint without prejudice under 28 U.S.C. §§ 1914 and 1915. The next day, the court received Herbin’s application to proceed without paying the fee. The opinion also states that Herbin had submitted a prisoner authorization form, but that form was unnecessary because he was not a prisoner when he filed the action.
Ruling
Because Herbin was representing himself, the court accepted the late application. It directed the clerk to vacate the December 7 dismissal order and judgment and to reopen the action for further proceedings.
The court certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith. It therefore denied permission to proceed without paying fees for purposes of an appeal. The opinion does not address the merits of Herbin’s underlying claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.